Chapter 2 - Parolees

A. Employment Authorization for Parolees

USCIS is the DHS component that has authority to grant employment authorization and issue employment authorization documents (EADs) to foreign nationals who are currently in the United States.

This chapter addresses discretionary employment authorization for foreign nationals who have been paroled into the United States under Section 212(d)(5) of the Immigration and Nationality Act (INA), based on an urgent humanitarian reason or for a significant public benefit.

The purpose of this chapter is to tailor certain existing guidance for officers on how to exercise discretion in adjudications involving parole-based employment authorization. USCIS has determined that it is necessary to issue this guidance at this time because there is a national emergency at the U.S. southern border where foreign nationals are entering the U.S. illegally.[1] USCIS also has determined that officers may need more guidance on the use of discretion in employment authorization adjudications.

This policy guidance provides officers with helpful tools based on existing policies to aid in their discretionary adjudications and to help ensure that requests for employment authorization based on parole are properly adjudicated.

Parole

The Secretary of Homeland Security has discretionary authority to parole into the United States temporarily “under conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any individual applying for admission to the United States,” regardless of whether the foreign national is inadmissible to, or removable from, the United States.[2] Congress did not define the phrase “urgent humanitarian reasons or significant public benefit,” entrusting the interpretation and application of these standards to the Secretary. 

Any foreign national may request parole but no foreign national has a right to be granted parole. Parole decisions are discretionary determinations that must be made on a case-by-case basis consistent with the INA. To exercise its parole authority, USCIS must determine that parole into the United States is justified by urgent humanitarian reasons or significant public benefit. Even when one of those standards is met, DHS may still deny parole as a matter of discretion. 

When deciding whether to exercise its parole authority, USCIS must consider all relevant information, including any criminal history or other serious adverse factors that would weigh against a favorable exercise of discretion. The denial of a request for parole is not subject to judicial review.[3] The Secretary also has the authority to impose any terms and conditions on the grant of parole, including requiring reasonable assurances that the parolee will appear at all the hearings and will depart from the United States when required to do so.[4]

In general, if USCIS favorably exercises its discretion to authorize parole, either USCIS or the U.S. Department of State will issue a travel document to enable the applicant to travel to a U.S. port of entry and request parole from U.S. Customs and Border Protection (CBP). CBP officers make the ultimate determination, upon the foreign national’s arrival at a U.S. port of entry, whether to parole him or her into the United States and for what length of time. Once a foreign national is paroled into the United States, the parole allows him or her to stay temporarily in the United States.

Parole is not an admission to the United States.[5] Parole also does not provide the foreign national with any lawful status. When a foreign national is allowed to be paroled into the United States, he or she is still deemed to be an applicant for admission.[6] Parole terminates automatically upon the expiration of the authorized parole period or upon the foreign national’s departure from the United States.[7] Parole also may be terminated on written notice when DHS determines the purpose for which the parole was authorized has been accomplished or when a DHS official determines that neither humanitarian reasons nor public benefit warrants the continued presence of the foreign national in the United States. When parole is terminated, the foreign national is “restored to the status that he or she had at the time of parole.”[8]

B. Eligibility for Employment Authorization

Employment authorization for parolees is discretionary; therefore parolees must apply for and be granted employment authorization before they may work in the United States.[9] A foreign national who is paroled into the United States is not employment-authorized incident to status.[10] 

Exercise of Discretion

USCIS, U.S. Immigration and Customs Enforcement (ICE), and CBP officers[11] can decide, as a matter of discretion, whether to grant a foreign national parole for urgent humanitarian reasons or based on a significant public benefit. The fact that USCIS, ICE, or CBP grants parole does not mean a foreign national is automatically entitled to discretionary employment authorization. The grant of parole is a separate determination from the grant of employment authorization, even though both adjudications require an officer to exercise discretion. 

USCIS determines whether to grant discretionary employment authorization on a case-by-case basis, taking into account all factors and considering the totality of the circumstances. In deciding if a foreign national should receive an EAD, USCIS officers should consider the underlying factors and circumstances which served as the bases for the foreign national’s initial parole (or re-parole).[12] However, these factors are not dispositive in determining if a favorable exercise of discretion is warranted for employment authorization purposes. 

The exercise of discretion does not mean the decision can be arbitrary, inconsistent, or dependent upon intangible or imagined circumstances. At the same time, there is no calculation that lends itself to a certain conclusion. An officer should determine whether to approve an application for employment authorization based on parole as a matter of discretion by:

  • Considering any positive or negative factors relevant to the applicant’s case,

  • Evaluating the case-specific considerations for each factor,

  • Avoiding the use of numbers, points, or any other analytical tool that suggests quantifying the exercise of favorable or unfavorable discretion, and

  • Assessing whether on balance a favorable exercise of discretion is warranted in light of the totality of the evidence including the positive and negative factors.

C. Adjudication of Parole-Based Employment Authorization Applications

In deciding whether a parolee should be granted employment authorization, USCIS makes a case-by-case determination considering all relevant information. The ultimate decision to grant discretionary work authorization for a parolee depends on whether, based on the facts and circumstances of each individual case, USCIS finds that the positive factors outweigh any negative factors that may be present, and that a favorable exercise of discretion is warranted. The denial of employment authorization is not subject to judicial review.

Discretionary Factors

Officers should consider and weigh positive and negative factors when conducting the discretionary analysis for employment authorization for parolees. A nonexclusive, nonbinding list of factors are reflected in the table below which officers may use at their discretion.

Employment Authorization for Parolees: Nonexclusive List of Factors Relevant to Discretionary Determination

Favorable Factors

Unfavorable Factors

  • The emergent nature of the event or circumstances that necessitated the foreign national’s parole that is dependent on work authorization

  • The length of time authorized for parole (for example, over 1 year) and conditions placed on parole

  • If the foreign national is the primary caregiver or source of financial support for a spouse, parent, or child with significant and debilitating health conditions

  • Any prior time periods the foreign national has been lawfully in the United States

  • If the foreign national is assisting (or will assist) the federal government in a criminal investigation or prosecution of significant duration

  • If the foreign national is the spouse, parent, or child of a U.S. citizen; or the foreign national is a member of the U.S. Armed Forces or in the Selected Reserve of the Ready Reserve and is currently serving on active duty, or, if discharged, served honorably

  • Any criminal history, especially serious crimes or felonies

  • The length of time authorized for parole (for example, less than 1 year)

  • If the foreign national violated the terms of his or her parole

  • The nature and severity of any prior violations of the immigration laws, including illegal entries and unauthorized employment

  • The length of time the foreign national was or has been in the United States without lawful presence, with shorter periods of time being more unfavorable

  • Grounds of inadmissibility or removal that may apply to the parolee that may be considered unfavorable factors

  • Fraud or material misrepresentations to obtain an immigration benefit

  • Lying or making a material misrepresentation to any immigration or consular officer or employee while such officer or employee is performing his or her official duties under the law

  • Whether the foreign national has a final order of removal or is subject to reinstatement of such an order

  • Whether the foreign national is a national security or public safety risk as evidenced by arrests and criminal convictions

The officer should examine the totality of the evidence, weighing the positive and negative factors in each case, and determine whether a favorable exercise of discretion is warranted to grant work authorization. Examples of serious negative factors based on the table above include, but are not limited to: 

  • A foreign national who has a final order of removal or who is subject to reinstatement of such an order;

  • A foreign national who has been convicted of an aggravated felony;[13]

  • A foreign national who has been convicted of any felony;[14]

  • A foreign national who has been charged with or convicted for any offense involving domestic violence or assault;

  • A foreign national who has been charged with or convicted for any criminal offense involving child abuse, neglect, or sexual assault;

  • A foreign national who has been charged with, arrested, and or convicted for any criminal offense involving illegal drugs or controlled substances;

  • A foreign national who has been charged with or convicted of driving under the influence or driving while intoxicated; or

  • A foreign national who has lied or made a material misrepresentation to any immigration or consular officer or employee while such officer or employee is performing his or her official duties under the law.

Officers may consider serious negative factors as strong unfavorable factors that weigh heavily against granting employment authorization as a matter of discretion. However, the negative factors noted above should not be interpreted as an instruction to automatically deny any application for discretionary employment authorization. The ultimate decision to grant or deny an application for employment authorization for a parolee rests on whether, based on the totality of the facts of the individual case, the officer finds that the positive factors outweigh any negative factors that may be present. 

Discretionary decisions that involve complex or unusual facts and whether the outcome is favorable or unfavorable to the applicant, may warrant supervisory review. Further, officers may consult with the Office of Chief Counsel through appropriate supervisory channels.

D. Validity Period

USCIS has discretion to establish a specific validity period for discretionary employment authorization. For purposes of discretionary employment authorization for parolees, officers should only grant employment authorization for the period that is the length of the parole authorization, which usually is not more than a year. Foreign nationals who are re-paroled may file a new employment authorization application under the procedures set forth in the instructions to the Application for Employment Authorization (Form I-765).

Footnotes


1. [^] See Presidential Proclamation 9844 of February 15, 2019, Declaring a National Emergency Concerning the Southern Border of the United States, 84 FR 4949 (PDF) (Feb. 20, 2019); Section 11 of Executive Order 13767 of January 25, 2017, Border Security and Immigration Enforcement Improvements, 82 FR 8793 (PDF) (Jan. 30, 2017).

2. [^] See INA 212(d)(5)(A).

3. [^] See INA 242(a)(2)(B)(ii).

4. [^] See 8 CFR 212.5(d).

5. [^] See INA 101(a)(13)(B) and INA 212(d)(5)(A). See 8 CFR 1.2 (“An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”).

6. [^] See INA 212(d)(5)(A).

7. [^] See 8 CFR 212.5(e)(1).

8. [^] See 8 CFR 212.5(e). See Hassan v. Chertoff, 593 F.3d 785, 789 (9th Cir. 2010).

9. [^] Under 8 CFR 274a.12(c)(11) and 8 CFR 274a.13.

10. [^] One exception is international entrepreneur parolees pursuant to 8 CFR 274a.12(b)(37) who are employment authorized incident to their parole by a specific employer. This PM chapter does not address this category.

11. [^] CBP, ICE, and USCIS all have authority to grant parole. See DHS Delegation Nos. 7010.3, 7030.2, 0150.1, and the September 2008 Memorandum of Agreement, Coordinating the Concurrent Exercise of USCIS, U.S. Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) of the Secretary’s Parole Authority under INA 212(d)(5)(A) With Respect to Certain Aliens Located Outside the United States.

12. [^] Foreign nationals are granted a fixed parole period that cannot be extended. If the foreign national's circumstances still meet the requirements for parole at the end of that period, the foreign national may be authorized a new parole period by the appropriate DHS component. This action is called “re-parole.”

13. [^] See INA 101(a)(43).

14. [^] As defined in 18 U.S.C. 3156(a)(3).

8 CFR 274a.12 - Classes of aliens authorized to accept employment

INA 212(d)(5)8 CFR 212.5 - Parole of aliens into the United States

Appendices


No appendices available at this time.

POLICY ALERT - Employment Authorization for Parolees

August 19, 2019

U.S. Citizenship and Immigration Services (USCIS) is updating its existing policies on the exercise of discretion to address the use of discretion when assessing if certain foreign nationals who are paroled into the United States should be employment authorized.

AFFECTED SECTIONS

 
Current as of

CHAPTERS

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